This undated photo made available by the Florida Department of Corrections shows inmate Freddie Lee Hall.

AP

WASHINGTON — Florida’s death penalty came under fire from a key Supreme Court justice Monday, as a divided court confronted the role of low IQ scores in exempting convicted murderers from execution.

Justice Anthony Kennedy, the court’s frequent swing vote, joined more liberal justices in questioning Florida’s rigid IQ score threshold for determining intellectual disability. Kennedy’s positioning hinted at the possibility that the court, probably on a close vote, might strike down the strict IQ rule used by Florida, Idaho, Kentucky and several other death-penalty states.

More broadly, Kennedy raised doubts about Florida’s administration of the death penalty and the long delays that have ensued. His implicit criticism went beyond Monday’s case, and hinted at other capital punishment debates to come.

“The last 10 people Florida has executed have spent an average of 24.9 years on death row,” Kennedy reminded Florida Solicitor General Allen Winsor. “Do you think that is consistent with the purposes of the death penalty, and is it consistent with sound administration of the justice system?”

Pressed several times, Winsor noted that Florida lawmakers had addressed “a number of issues” Kennedy raised with passage of legislation last year. Many prison inmates have since challenged the state’s Timely Justice Act, which is now before the Florida Supreme Court.

Freddie Lee Hall, the 68-year-old convicted murderer whose case was before the U.S. Supreme Court on Monday, has been on the state’s death row since 1978. He and an accomplice were convicted of murdering a 21-year-old pregnant woman and a Hernando County deputy sheriff.

“He is the one who seized the young woman, who pushed her into a car, who drove the car with his accomplice following in another car and who killed her, and . . . killed a policeman, too, later,” Justice Antonin Scalia recounted, suggesting that Hall’s actions showed some level of mental competence.

Hall didn’t raise the mental retardation issue for the first 10 years of his imprisonment. After he did, Kennedy noted pointedly, five years passed before the state conducted the hearing designed to assess his intellectual capacity.

The Supreme Court has previously decided, in a 2002 case called Atkins v. Virginia, that the execution of those variously called mentally retarded or intellectually disabled violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court left the definition up to individual states.

Florida imposes a three-part test, which starts with a rigid requirement that the inmate score 70 or below on the IQ test. If the inmate scores below the cutoff number, the state also will assess for “deficits in adaptive behavior” and an onset before the age of 18.

“Florida has an interest in ensuring that the people who evade execution because of mental retardation are, in fact, mentally retarded,” Winsor said.

Hall and his allies counter that Florida errs by not taking into account the standard 5-point margin of error, which means someone who scores a 75 might actually have a testable IQ of 70.

“If a state conditions the opportunity to demonstrate mental retardation on obtained IQ test scores, it cannot ignore the measurement error that is inherent in those scores, that is a statistical feature of the test instrument itself,” Hall’s attorney, former Solicitor General Seth Waxman, told the court.

“Your rule prevents us getting a better understanding of whether that IQ score is accurate or not,” Kennedy told Winsor.

Kagan added that “we know from the way these standard margins of error work” that an inmate who scores a 71 might actually “have an IQ of 69.” Hall has registered IQ scores from the low 70s to as high as 80.

Scalia was most vociferous in his apparent support for Florida’s rigid rule, arguing that courts should defer to a state’s legislative judgment rather than look to evolving standards set by groups such as the American Psychological Association.

“This APA is the same organization that once said homosexuality was a mental disability and now says it’s perfectly normal,” Scalia said. “They change their minds.”

Cornell Law School Professor John H. Blume, a death penalty expert, said in an email interview that only “around 10” death row inmates with borderline IQ scores stand to benefit immediately if the Supreme Court sides with Hall in the case heard Monday.

Justice Clarence Thomas, as is his habit, was the only one of the nine justices not to speak or ask questions during the hourlong argument. A decision is expected by the end of June.

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